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Citation: 42 Fed. Reg. 21472 1977

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### 21472

preamble to EPA's replacement regulation which is being promulgated in an- other section ofthisFEDERALREGISTER.

EPA's authority to disapprove theregulation was questioned by the state and Kennecott. However, EPA's position that constant control technology must be utilized to achieve the NAAQS and that

a supplementary control system (SCS) may be credited as an interim control

measure only after the application of RACT is supported by the weight of judicial authority. See, e.g., Big Rivers ElectricCorporation, etal.v. EPA, etal., 523 F. 2d 16 (6th Cir., 1975) and Kennecott CopperCorporation v. Train,526 F. 2d 1149 (9th Cir., 1975).1 It is EPA'sposition that the state regulation does ndt require installation of RACT. In addition ,recently obtained air monitoring data indicate that even after RACT is installed by the company, the NAAQS will not be met in the vicinity of the Kennecott plant. Therefore, in the near future EPA will propose, as an interim measure, an SCS system for thesmelter. The Agency Is also promulgating a malfunction regulation, which will-take into consideration the problem of malfunction and yet not render the emission limitation unenforceable.

Kennecott Copper Corporation also commented that, because of their brevity, theEPAnotice proposingdisapproval of the state regulation and the supportive documentation did not comply with the Administrative Procedure Act. It is theAgency's position thatthe noticeand and the supporting documents complied with the requirements of the Administrative Procedure Act, inasmuch as they adequately described the subject and the issues of the proposed action, enabling the public to understand and meaningfully comment.

Since no persuasive technical or legal evidence has been presented insupportof this regulation, the Administrator is disapproving Section 2.5 as proposed. The SOs regulation for Kennecott, promulgated by EPA on November 26, 1975, the malfunction regulation being promulgatedbyEPA, and the SCS regulation to be proposed, will provide for the attainment of the NAAQS for SO, until such time as the state adopts and submits an approvable SO. regulation to EPA.

Insofar as the provisions approved herein have existed as State law for a substantial period of time and, as a re- sult, do not impose any additional burdens on sources subject to such provisions, no useful purpose would be served in deferring the effective date of this action for 30 days. Accordingly, good

cause is found for Instituting this rulemaking effective immediately. ADDRESSES: Copies ofthe public com- ments and EPA's detailed analysis ofthe comments are available for public inspection at the EPA offices listed below:
Environmental Protection Agency, Region

VIII,Air and Hazardous Materials Division, Suite 900, 1860 Lincoln Street, Denver, Colo. 80295.

'But see Kennecott Copper Corporationv. Train,9ERC 1693 (D.C. Nev. 1976). RULES AND REGULATIONS

Environmental Protection Agency, Public

Information Reference Unit, Room 2922, 401 M Street SW., Washington, D.C. 20460. Environmental Protection Agency, Room

4223, Federal Building, 126 South State Building, Salt Lake City, Utah 84111. (42 U.S.C. 1857c-5.)

Dated: March 30, 1977.

BARBARA BLUM, ActingAdministrator. Part 52 of Chapter I, Title 40 of the Code ofFederal Regulations is amended

as follows: SubpartTT-Utah 1. In §52.2320, paragraph (c) is amended to read as follows: " 

### § 52.2320 Identification ofplan.

(c) The plan revisions listed below

were submitted on the dates specified:

*

- * * * * (5) The Revised Utah Air Conservation Regulations on July 10, 1975, by the Governor.

2. In §52.2325, paragraph (a) is amended to'read as follows: 

### § 52.2325 Control strategy: Sulfur oxides. (a) * * * Furthermore, section 2.5 of the Utah Air Conservation Regulations is disapprovedbecause it doesnotprovide for attainment of the short-term ambient standards for SO2,is unenforceable, and allows the utilization of a supplementary control system without re- quiring the application of reasonably available control technology.

[FR Doc.77-12000 Filed 4-26-77;8:45 am]

[FRL 704-7] PART 52-APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS, Utah SO Control Strategy AGENCY: U.S. Environmental Protection Agency. ACTION: Final rule. SUMMARY: The purpose of this rulemaking is tofinalize regulations relating to excess emissions dueto start-up shutdown and malfunction from the Kennecott Copper Corporation smelter located in Salt Lake City, Utah. EFFECTIVE DATE: May 27, 1977. FOR FURTHER INFORMATION CONTACT:

Louis W.Johnson, Chief, Planning and Operations Section, Air Programs Branch, U.S. Environmental ProtectionAgency, Region VIII, 1860 Lincoln Street, Denver, Colorado 80295. (303- 837-3711.) SUPPLEMENTARY INFORMATION: OnOctober 29, 1975, EPAproposed regulationswhichrequire thereportingofexcess emissions from the Kennecott CopperCorporation smelter to theAdministrator. In response to the proposed regulations, various Issues have been raised by the owner and operator ofthe subject smelter. These comments object to the proposed regulations because: (1) The proposal does not grant an automatic exemptionfrom theemissions limitations after compliance with the reporting re- quirement; (2) there is no provision re- lating to the excess emissions resulting from thephasing in oroutofprocess and control equipment orfrom routine maintenance ofthis equipment; (3) the proposal of a "reporting requirement" is inconsistent with the Agency's alleged approval of Statemalfunction provisions which exempt sources from 'applicable emission limitations during periods of

excess emissions.
DISCRETION vs. AUTOMATIC EXEMPTION

The claim that an emission limitation exemption should be automatic during periods of excess emissions due to startup, shutdown or malfunction Is based on smelter's contention that to penalize an operation for emissions that are beyond the control of a prudent operator is un- reasonable. The Administrator agrees that the issuance of an administrative order or the initiation of Judicial action following a period of excess emissions caused bycircumstances beyond the con- trol of the operator may not be appro- priate. However, the Administrator has determined that the automatic granting of a regulatory exemption for these periods of excess emissions Is not a suitable remedy.

Although theAdministrator recognizes that some relief should be afforded during certain upset situations, the promulgation of an upset regulation should not diminish the smelter's Incentive to develop better operating and maintenance procedures. If an automatic exemption

were promulgated, It would encourage the smelter to claim, after every period of excess emissions, thatan exemption Is warranted. Ifthe operator of the smelter

were so inclined, it would be relatively easy for the company, as a result of the burden of proofplacement, to effectively block all Federal enforcement against the smelter.

Clearly, the better approach and the

onewhich is consistent with the enforcement imperatives of section 110 Is to place the burden ofprovingthe existence of an unavoidable malfunction on the

source. Consequently, the only enforceable means available to the Agency in dealing with all emission excursions-be they potentially due to malfunctions or otherwise-is to issue notices of violations with the source being given an opportunity to prove that the violation

was due to an unavoidable malfunction.

TheAdministrator has concluded that the appropriate enforcement process, as prescribed by section 113, affords ample opportunity for the owner or operator of the smelter to Identify malfunctions and upsets beyond his reasonable control priortotheIssuance of anadministrative order. Therefore, the Administrator has determined that the way to encourage thecontinued improvement Intheoperation of a smelter and Its attendent con- trol equipment Is to retain his discretion to order administrative actions or Initiate judicial proceedings following a

FEDERAL REGISTER, VOL. 42, NO. 81-WEDNESDAY, APRIL 27, 1977

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### RULES AND REGULATIONS
period of excess emissions. However, the Administrator also finds that it is rea- sonable to detail the enforcement pro- cedure that hewill follow whena period of excess emissions occurs and indicate how thisdiscretion willbe exercised.

Upon receipt of the smelter's submission of the report of excess emissions requir d under §52.2325(d) (3) (viii) of this subpart, a Notice of Violation will be issued. This procedure is consistent with the decisionin WisconsinEnvironmentalDecadev.Train,395F. Supp. 313 (W.D. Wis., 1975), and other recent district court rulings. After the issuance of the Notice, the-Administrator will con- sider any information developed by the
source whichmorefully explains the circumstances of the violation and the source's actions in responsethereto. This information will be used in evaluating the seriousness ofthe violation and any good faith efforts of the owner or operatorofthe smelter tocomplyandin determiningwhether further Agency action is appropriate.

Inhaisassessment ofthecircumstances oftheemission ofpollutants in violation of the applicable emission limitations. the Administrator will determine whether:

(1) The air pollution control equip- 

### ment, process equipment. or processes were at all times maintained and oper- 

### ated,tothemaximum extentpracticable, inamanner consistent with good prac- ticeforminimizing emissions; (2) Repairs were made as expediti- ously as practicable including the use of off-shift labor and overtime; (3) The amount and duration of the
excess emissions were minimized to the maximum extent practicable during periods ofsuchemissions; and, (4) Bypass of strong SO, streams around acid plants was limited to the maximum extent practicable.

Ifeach ofthese determinations is affirmative in the opinion of the Agency, there could be-no additional course of actionwhichwouldbereasonable for the
owner or operator to implement. Moreover,thesituationwouldnotwarrant the impositionofcriminal penalties.Accordingly,theAdministrator would generally not follow the Notice of Violation with any further action.

The promulgation of apolicythat requiresthe subjectsmeltertopresentevidence inmitigation of a finding ofviolation, if it desires to contest the Administrator's enforcement action,does notinvite-rustration ofthe enforcement ofemissions standards. However, at the
sametime,ample opportunityisprovided to the source to explain the circumstances surrounding the excess emissions before anyAgency actionistakenwhich mandates the expenditure of capital for additional control or results in anyju- dicial liability being affixed. In the Administrator's view, this approach most effectively encourages continued development ofbetter operating and maintenance procedures without imposing unreasonable requirements on the source. PHASING INAND OUT OFEquwMN'T The Administrator finds that 

### routine phasing in and out ofproces equipment is part of the normal operation of a smelter and should be accounted for in the design and implementation of the operating procedure for the process equipment. Accordingly, the Administrator concludes that It is reasonable to expect that emission limitations willnot be violated duringsuch periods.If excess emissions should occur during routine phasing in and outofprocess equipment the excess emissions will not be considered as malfunctions unless the source
can demonstrate that such emissions

were caused by a breakdown in the process equipment. ROUTINE AMvTENAu~CS The proposed regulations did not address periods ofroutine maintenance in the malfunction provisions. This action

was consistent with the basic purpose of the proposed regulation, which was to address excess emissions caused by "sudden and unavoidable failure" of process or control equipment. Allowing a smelter to operate independent of the emission control equipment during periods of routine maintenance would be inconsistent with bindinglegal interpretations of section 110 of the Clean Air Act. These legal opinions dictate that prior to allowing a source to use dispersion techniques to attain and maintain national ambient air quality standards (NAAQS), the Agency mustrequire such source to install all available controls. Permitting

a source to employ dispersion techniques to attain and maintain national standards without constant controls during periods of routine maintenance is con- trary to such legal decisions. This is because routine maintenance can be considered as basically a predictable event,which can be scheduled to a large extent at the discretion of the smelter operator. As a result of this planning ability, routine maintenance can be scheduled to coincide with maintenance
on production equipment or other smelter shutdowns. As such, the control equipment is always available when the equipment it serves is operational.Moreover, since any industry, including the smelting industry, has the ability to build and maintain inventory, the as- pect of planning routine maintenance during periods of smelter shutdbwn should not be of grave concern to the smelter operator. Consequently, no ex- cess emissions will be allowed during periods ofroutine maintenance.

In addition, permitting vexcess emissions during periods ofroutine mainte-

mance would be inconsistent with the Azency's approach to new source per- formance standards (NSPS) which does nQt permit excess emissions during periods of scheduled maintenance. In

cases where Agency poliies for new sources differ from those for existing sources, the policy for existing sources is generally more stringent. This is due to the fact that the Clean Air Act requires existingsourcestobe controlledto protect the public health and welfare while, except fornew source review, the principal focus for new sources is technologybased.Were theAgency to depart from existing policy and adopt maintenance provisions for existing smelters thatwere more lenientthan themaintenance approach It has adopted for new smelters, It would have an impossible enforcement problem in theeventthata smelter chose to expand an existing smelting site. With this ,in mind and given that the problems associated with scheduled acid plant maintenance are essentially the same whether the acid plantis neededtomeetNSPS orNAAQS, the Agency believes it appropriate to treat scheduled maintenance underboth situations in the sameway.
STATE MALcToXiT Pnovisroxs Kennecott has argued, that the approach taken in these regulations is inconsistent with various malfunction regulations approved by EPA as part of State Implementation Plans (SIPs) submitted by several western States. In response, the Agency will undertake a review of all State malfunction regulations.Shouldthereviewindicatethatthe regulations do not satisfy the requirements of Section 110 ofthe Act, the affected States will be requested to take -corrective action. In reviewing these regulations the Agency will focus onthe

same considerations that were centralto the rulemaking promulgated herein. If, in reviewing the involved Stateregu- lations, It becomes clear that they have thepotential forpermitting violations of NAAQS by exempting malfunction episodes from applicable emission limitations, the malfunction provisions will be rejected on the ground that they interfere with attainment of the national standards.

Finally, where ambient standards are being achieved by virtue of an interim supplementary control system, a tall stack and reasonably avalable control technology (RACT), a SIPprovision ex- empting malfunction periods from applicable emission limitations might not resultingroundlevel concentrations that exceed the standards. However, such a provision would have the effect of con- doning emissions above the RACT emissionlevel. While it might be appropriate toforbearfrom enforcingwherethemalfunction is beyond the control of the source, EPAbelieves thatit wouldbeinappropriate to condone, by exemption, emission levels above the RACT floor. Thus,in evaluating theSIPsIn question, EPAwill (in addition totheotherfactors noted above) regard as unacceptable any malfunctionprovisionwhich, as amatter of regulatory exemption. allows emissionlevels toexceed theRACTfloor duringmalfunction conditions. OUT=arm or REATIONs Briefly, the regulations defineall periods of excess emissions as violations of the applicable emissions standards and establish a procedure whereby the owner

FEDERAL REGISTER, VOL 42, NO. 81-WEDNESDAY, APRIL 27, 1977 

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### 21474

or operator oftheKennecott smelter may supply information to the Administrator in order to enable him to carry out his statutory duties. Although the information tobesuppliedis not limitedin scope, the regulation does require thatifinformation is givento theAgency,it include: (1) identification of the emission points; (2) the magnitude of the excess emissions; (3) the identity of the process or control equipment causing the excess emissions; (4) the cause and'nature of the excess emissions; and (5) adescription of the steps taken by the owner or operator of the subject smelter to remedy the situation causing the emissions, prevent arecurrence and limit the

excess emissions. Finally, nothing in the regulation relieves the source of its obligation to attain and maintain the na- tional ambient air quality standards for S02 nor precludes the Administrator from initiating any appropriate actions under Sections 113 or 303 of the Clean Air Act.

This rulemaking will become effective

on May 27, 1977, and is authorized by Sections 110, 113, and 301 of the Clean Air Act (42 U.S.C. 1857c-5, 1857-c-8, and 1857g).

Dated: March30, 1977.

BARBARA BLUM, Acting Administrator.
Part 52 of Chapter I, Title 40 of the Code of Federal Regulations is amended

asfollows: Subpartf--Utah

In §52.2325, paragraph (e) is added

as follows: § 52.2325 Control Strategy: Sulfur oxides.

(e) Compliancewith emission standards;Reportingexcess emissionsduring periodsofstart-up,shutdown,and mnalfunction:Kennecottsmeltercomplex. (1) The provisions of this paragraph

are applicable to the Kennecott Copper Corporation located inSalt Lake County, Utah, in the Wasateh Front Intrastate AirQuality ContiolRegion. (2) All terms used in this paragraph but not specifically defined below shall have the meaning given them in the Clean Air Act or Parts 51, 52, or 60 of thischapter.

(i) Theterm "excess emissions" means
an emission rate which exceeds any applicable emission limitation prescribed by paragraph (d) of this section. The averaging time and test procedures for determining such excess emissions shall be as specified as part of the applicable emissionlimitation.

(ii) The term "malfunction" means any sudden and unavoidable failure of air pollution control equipment or process equipment or a process to operate in

a normal and usual manner. Failures that are caused entirely or in part by poormaintenance, careless operation, or any other preventable upset condition or preventable equipment breakdown shall rot be considered malfunctions.

(tii) The term "start-up" means the setting into operation of any air polluRULES AND REGULATIONS

tion control equipment or process equipment for any purpose, except routine phasing in of process equipment. (iv) The term "shutdown" means the cessation of operation of any air pollutioncontrol equipment or process equipment for any purpose, except routine •phasing out of process equipment. (v) The term "violation" means any incident of excess emissions, regardless of the circumstances of the occurrence. (3) (i) In the case of excess emissions from the Kennecott smelter for .which the Administrator has issued a Notice of Violation, the owner or operator of the subject smelter may submit the following data in order to a&ist the Administrator in carrying out his statutory responsibility under section 113 of the Clean AirAct to: (A) take into account, when issuing an administrative order under section 113(a) (4), the "seriousness ofthe violation and any good faith efforts to comply" with paragraph (d) of this section, or (B) initiate ajudicial action under section 113(b) (1) or (2)

or section 113(c) (1) (A) or (B), in appropriate circumstances. (ii) Each submission shall include, as
aminimum:

'(A) The identity of the stack and/or other emission point where the excess emissions occurred: (B) Themagnitude oftheexcess emissions expressed inthe units of theapplicableemission limitation andthe operating data and calculations used in determining the magnitude of the excess emissions; (C) The time and duration ofthe excessemissions,

(D) The identity of the equipment causing the excess emissions;

(E) The nature and cause of such

excess emissions; (F) If the excess emissions were the result of a malfunction, steps taken to remedy the malfunction and the steps taken or.planned to prevent the recur-
rence of such malfunctions; (G) The stepstaken tolimittheexcess emissions; and (H) Documentation that the air pollution control equipment, process equipment, or processes were at all times maintained and operated, to the maximum extent practicable, in a manner consistent with good practice for minimizingemissions. (4) At any time, the owner or operator of the Kennecott smelter has the right to submit data, information or re- portsto theAdministrator, includingbut not limited to the information specified in paragraph (e) (2) (ii) above, in order to assist the Administrator in carrying out his statutory responsibilities under sections 113 and 303 of the Clean Air Act. (5) The submittal of information pursuant to paragraphs (e) (3) and (4) of this paragraph shall be used by the Administrator in determining the nature of the violation, the need for further enforcement action and the appropriate sanctions, if any,uhder theprovisions of theClean Air Act.

FEDERAL REGISTER, VOL. 42, NO. 81-WEDNESDAY, APRIL (6)Nothing In this section shall be construed to limit the obligation of the

source to attain and maintain the national air quality standards for SOj nor the authority of the Administrator to institute actions under sections 113 and 303 of the Clean Air Act or to exercise his authority under section 114 of the CleanAirAct.

[FRDo.77-12001 Pled 4-26-77;8:45 aml

Title 41-Public Contracts and Property Management CHAPTER 128-DEPARTMENT OF JUSTICE PART 128-18-ACQUISITION OF REAL PROPERTY Subpart 128-18.50-Uniform Relocation

Assistance and Real Property AcqulsltionPolicies AGENCY: Department ofJustice.
ACTION: Final rule.
SUMMARY: This rule prescribes the procedures and regulations governing relocation assistance and land acquisitionpolicies oftheDepartment ofJustice under theUniformRelocation Assistance and Real Property Acquisition Policies Act of 1970. This action ncorporates changes in the guidelines for agency Implementation of General Service Administration's Federal Management Circular 74-8 published on October 4, 1974 and Supplement 1thereto, published on July 3, 1975. EFFECTIVE DATE: This rule becomes effective onApril 27, 1977.
FOR FURTHER INFORMATION CONTACT:

William H.O'Donoghue, Chief, Administrative Programs Section, Security and Administrative Programs Staff, Office of Management and Finance, Department of Justice, 1oth and Constitution Ave., NW., Washington, D.C. 20530 (Phone 739-2971). SUPPLEMENTARY INFORMATION: On August 16, 1976 there was published in the FEDERAL REGISTER (41

### FI 34636) 

### a notice of proposed rulemaking In Chapter 128 of Title 41 of the Codeof Federal Regulations. The Department ofJustice proposed to revise its regulations governing relocation assistance andlandac- quisition policies under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Interested parties were given the opportunity to submit,not later thanAugust31, 1970, written views on the proposed revised regulations.' Comments were received froni one private citizen. The comments suggested (1) the inclusion of a paragraph under §128-18,5003-21 to permit individuals toreceive expenses forphysical changes to the replacement site and for the conversion of equipment and (2)
to change the paragraph under §128- 18.5003-24(a) to entitle the displaced

person to thedifference between thefair market value of the personal property for continued use at its location prior to displacement and the "net proceeds of 27, 1977

HeinOnline -- 42 Fed. Reg. 21474 1977